In re David S. Kahn, 86 N.Y.2d 510 (1995)

An attorney cannot be subjected to final disciplinary action based on conviction of a serious crime until a judgment of conviction, including sentencing, has been rendered.

Summary

This case addresses whether an attorney can face final disciplinary sanctions following a guilty plea for a serious crime, but before a final judgment of conviction is rendered (i.e., before sentencing). The New York Court of Appeals held that final sanctions, such as disbarment, cannot be imposed until a judgment of conviction, including sentencing, is final. The Court emphasized the distinction between a “conviction” (a guilty plea or verdict) and a “judgment” (conviction plus sentencing). While an interim suspension can be imposed upon a conviction, final disciplinary action requires a completed judgment.

Facts

David S. Kahn, an attorney, pleaded guilty in federal court to tampering with a witness, attempting to evade income tax, and mail fraud. He had not yet been sentenced because he was cooperating with federal authorities. Based on the guilty plea, the Grievance Committee sought to strike Kahn’s name from the roll of attorneys or, alternatively, to suspend him. The Grievance Committee initiated disciplinary proceedings based on Kahn’s conviction of serious crimes.

Procedural History

The Appellate Division suspended Kahn from practicing law and authorized the Grievance Committee to institute disciplinary proceedings. A Special Referee sustained the charges. The Grievance Committee moved to confirm the report and impose discipline. The Second Department imposed a final sanction of disbarment. Kahn appealed, arguing the disbarment was premature because there was no final judgment of conviction.

Issue(s)

Whether the Appellate Division can impose a final sanction on an attorney convicted of serious crimes before a final judgment of conviction (including sentencing) has been rendered.

Holding

No, because Judiciary Law § 90(4)(g) requires a “judgment of conviction against an attorney becoming final” before the Appellate Division can order the attorney to show cause why a final order of suspension, censure or removal from office should not be made.

Court’s Reasoning

The Court of Appeals emphasized the distinct meanings of “conviction” and “judgment” under New York Criminal Procedure Law (CPL). A conviction is the entry of a guilty plea or guilty verdict, while a judgment includes both the conviction and the sentence imposed. Judiciary Law § 90(4)(f) allows for interim suspension upon a record of conviction for a serious crime, but § 90(4)(g) explicitly requires a final judgment of conviction before a final disciplinary order can be issued. The court reasoned that imposing final sanctions before sentencing was premature. The purpose of having separate provisions for felonies and serious crimes is “to avoid the automatic disbarment of an attorney without sufficient cause, and [to] also protect the public from unfit attorneys who have committed serious crimes — even though they may not constitute felonies under the laws of this State.” (Governor’s Mem approving L 1979, ch 674, 1979 NY Legis Ann, at 403). The court noted that Kahn remained suspended from practice during the interim period, adequately protecting the public. The Grievance Committee based its case on Kahn’s conviction, not the underlying misconduct; therefore, the disbarment was premature.